Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Thursday, July 17, 2008

Herrera v. Hernandez (Cal. Ct. App. - July 17, 2008)

I understand where Justice Mihara is coming from in this one. Much of what the appellant says is clearly wrong; for example, the claim that reversal is required because the juror obviously deliberately lied during voir dire. And the equities seem clearly to favor upholding the judgment below.

Let's be clear: it's not like the juror did anything at all untoward or wrong. The juror didn't realize that her ex-husband -- whom she divorced 20 years ago -- was the defendant's nephew until the defendant's daughter (whom the juror recognized) sat behind the defendant at trial. And, once she did realize that fact, the juror immediately notified the court and explained the scoop. The juror wasn't trying to hide anything. She barely knew the defendant. She could totally be fair. I completely agree.

Given all that, I can understand -- at least emotionally -- why Justice Mihara doesn't reverse the judgment.

The problem is this pesky little thing called the law. Section 229 of the CCP says that "a challenge for implied bias may be taken for one or more of the following causes, and for no other: (a) consanguinity or affinity within the fourth degree to any party . . . ." There's no doubt that the juror met this "fourth degree" criteria since she was married to defendant's nephew. That's not a blood relation, but it is a relation by "affinity"; i.e., by marriage. Hence she's subject to challenge for cause.

Justice Mihara holds, however, that the term "affinity" is present tense and hence that the divorce negated the challenge for cause. When I first read this holding, I thought it made sense, and it seemed totally persuasive.

But I also had this strange feeling in my gut -- and I usually don't get this feeling -- that something was amiss notwithstanding my agreement. And when I went back and looked at the stuff in more detail a little bit later, I was persuaded that Justice Mihara's holding, while well-intentioned, was both wrong and makes very bad law.

There are two problems with this view. First, as a matter of statutory construction, I don't think that "affinity" means what Justice Mihara asserts it means. He says it's present tense -- and hence only applies if the parties are still married -- because "affinity" is defined in Section 19(b)(9) of the CCP as "the connection existing in consequence of marriage" (emphasis hers). Hence, he argues, there's no "affinity" if there's been a divorce since that connection isn't "existing".

Let's entirely ignore for a moment the caveat of Section 19(b) that this general definition doesn't apply when the context reflects otherwise. I still don't think that what Justice Mihara asserts is true. Yes, Section 19 says "existing". But the full context of that word is as follows: "the word 'affinity,' when applied to the marriage relation, signifies the connection existing in consequence of marriage . . . ." In other words, yes, the connection has to exist, but that connection only need exist "in consequence" -- i.e., because -- of the marriage. Which it clearly does. The relationship was created exclusively due to the marriage; without that event having ever transpired, there'd have been no relationship. "Affinity" merely "signifies the connection existing in consequence of marriage". That connection exists here. The marriage created the connection, and the definition of "affinity" accordingly says nothing about that connection being terminated upon divorce. "In consequence" is the relevant term, and that's not limited to present tense.

But ignore grammar for a moment. Or even context. Because, sure, one could perhaps go the other way on those. Let's look at this thing more globally. Let's say that Justice Mihara is correct; that "affinity" is definitionally present tense and is dissolved once there's a divorce. Let's see what happens.

Let's say that a defendant's ex-wife of 6 months is called as a juror in his trial. Challenge for implied bias? Nope. Not according to Justice Mihara's definition. Since the juror no longer has an affinity with her ex-husband post-divorce. Nor can you satisfy paragraph (b) of Section 229 (since that's clearly present tense), and hence you'll have to show actual bias -- which will tough so long as the ex-wife says she can be perfectly fair. Regardless, you've got to categorical challenge for implied bias.

In other words, under Justice Mihara's view, Section 229 excludes for implied bias a juror who has a grand niece who's a witness (or a first cousin once removed) but not a juror who's the actual ex-spouse of a party. That doesn't make sense to me. And I do not think that's either the intent of the Legislature or the textual command of the statute. In each of these cases there's an "affinity" that was created by the marriage. So just like you can't be a juror -- or at least can be challenged for cause for implied bias -- if your stepdad is a party, so too can you be similarly challenged if your stepdad-until-yesterday-when-the-divorce-became-final is a party. For challenge purposes, there's an "affinity" there -- a relationship as a result of a marriage -- regardless of whether the divorce became final yesterday or becomes final tomorrow. And for good reason.

Similarly, by the way, I think that in common discourse, we say that you have an "affinity" with someone even if the marriage that created that affinity has run its course. Don't think so? Then it's okay to fool around with your ex-wife's daughter, right? Woody, I'm sure, will glad to agree. Ditto for your Dad's ex-wife. Totally cool.

First cousins once removed on a jury?! The Legislature in Section 229(a) clearly says "No way." Your ex-husband on a jury?! The Court of Appeal says "Fine by Section 229(a)."

I understand why. But having looked at it further, as a matter of grammar, structure, and purpose and intent, I'm going to have to respectfully disagree. I think there's a legitimate challenge for cause here pursuant to the express provisions of Section 229(a). And wouldn't want the statute to be interpreted otherwise. E.g., in the manner in which the Court of Appeal defines it here.